UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4192

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNNY SHANE MYERS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:05-cr-00023-12)

Submitted: November 30, 2006 Decided: January 26, 2007

Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Patrick B. Ochsenreiter, OCHSENREITER LAW FIRM, Asheville, North

Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED

STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM:

Johnny Shane Myers pled guilty pursuant to a written plea

agreement to one count of conspiring to manufacture and possess

with intent to distribute over 1.5 kilograms of methamphetamine, in

violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp. 2006). 

In his plea agreement, Myers waived the right to contest

his conviction and sentence, with the exception of claims based on

ineffective assistance of counsel or prosecutorial misconduct.

Myers was sentenced to 135 months’ imprisonment and timely

appealed. 

On appeal, Myers argues that he received ineffective

assistance of counsel at sentencing because counsel failed to:

(1) call the court’s attention to the fact that in the period

pending sentencing Myers had completed a forty-week drug

rehabilitation program, and (2) request a downward departure based

on this conduct. The Government has moved to dismiss the appeal,

contending it is barred by the waiver of appellate rights in Myers’

plea agreement. 

When the Government seeks to enforce a waiver of

appellate rights, and there is no claim that the Government

breached the plea agreement, this court will enforce the waiver if

the record establishes the defendant knowingly and intelligently

agreed to waive the right to appeal, and the issue being appealed

is within the scope of the waiver. United States v. Blick, 408
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F.3d 162, 168-69 (4th Cir. 2005). “An appeal waiver is not

knowingly or voluntarily made if the district court fails to

specifically question the defendant concerning the waiver provision

of the plea agreement during the Rule 11 colloquy and the record

indicates that the defendant did not otherwise understand the full

significance of the waiver.” United States v. Johnson, 410 F.3d

137, 151 (4th Cir.), cert. denied, 126 S. Ct. 461 (2005) (internal

quotations and citations omitted). 

Myers does not contend that the district court failed to

adequately question him concerning the appellate waiver at his

guilty plea hearing or that he did not otherwise understand the

significance of the waiver. Rather, assuming the validity of the

waiver, Myers contends that the issue he raises is outside the

scope of waiver. We agree. Myers’ plea agreement explicitly

reserves the right to appeal based on ineffective assistance of

counsel. Accordingly, the issue he seeks to raise on appeal is

clearly outside the scope of the waiver. 

Nonetheless, a claim of ineffective assistance of counsel

is not cognizable on direct appeal unless the ineffective

assistance appears conclusively from the face of the record.

United States v. James, 337 F.3d 387, 391 (4th Cir. 2003). Here,

counsel’s decision not to argue for a downward departure based on

completion of the drug rehabilitation program was not unreasonable;

rather, counsel’s decision reflects a strategic choice. Therefore
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ineffective assistance of counsel does not appear conclusively from

the record. See Strickland v. Washington, 466 U.S. 668, 689-90

(1984).

Accordingly, while Myers’ waiver of the right to appeal

does not preclude him from bringing his appeal based on a claim of

ineffective assistance of counsel, his ineffective assistance of

counsel claim is nevertheless not cognizable on direct review. We

therefore affirm Myers’ conviction and sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED